HEALTHSAFE DISTRIBUTION GENERAL TERMSThese Terms were last updated on 24 June 2024A.  HealthSafe provides a software-as-a-service solution to assist organisations in managing their health and safety obligations for those who work at and interact with them, for example, visitors, contractors and employees.B. If we agree an Order Form, HealthSafe grants you, and you accept, the right to market and sell the HealthSafe Solution in accordance with these General Terms and the specific terms set out in the Order Form.

1.       Definitions, Interpretation and Agreement Structure1.1     In this Agreement, unless the context otherwise requires:

Access Charges means the fees payable by you for your and/or your Customers’ access and use of the HealthSafe Solution, as set out in an Order Form, or as otherwise agreed between the parties in writing, but does not include the HealthSafe Device Charges;

Agreement means these General Terms (including the Schedule) and any Order Form(s) entered into between the parties;

App Terms means the terms of use for the HealthSafe App as accepted by each Visitor on downloading the HealthSafe App;

Business Day means a day other than a Saturday, Sunday or public holiday in Auckland, New Zealand;

Charges means the Access Charges, HealthSafe-Provided Device Charges and any other charges or fees payable by you as set out in an Order Form;

Confidential Information means any information (in whatever form) about or belonging to a party that:
(a)    is by its nature confidential;
(b)   the other party knows or should know is confidential; or
(c)    is expressly identified as confidential,and is disclosed to, or obtained by, the other party in connection with this Agreement, but does not include Customer Data;

Customer means an End Customer and/or an Integrator;

Customer Data means any data created, collected or obtained: (a) via the HealthSafe Solution; and/or (b) from you, Customers or Visitors, in each case from or in relation to a HealthSafe-Enabled Place, but excluding HealthSafe Anonymised Data;

Distribution Business means the promotion, marketing and distribution of the HealthSafe Solution by you in the Territory;

Distributor, you and your means the person identified on an Order Form that is appointed as a Distributor subject to the terms of this Agreement and the specific terms of the Order Form;

Distributor Support Services means any support services you provide to Customers, including those set out in an Order Form;

Documentation means the documentation (if any) we make available to you and/or a Customer, which sets out a description of, and user instructions for, the HealthSafe Solution;

End Customer means any third party (excluding an Integrator) who purchases access to the HealthSafe Solution from you or an Integrator (as set out in an Order Form);

EULA means the End User Licence Agreement in the form set out in the Schedule or as updated by us from time to time and notified to you;

Fixed Term means the period (if any) specified as such in an Order Form;

General Terms means these HealthSafe Distribution General Terms located at https://healthsafe.co/healthsafe-distribution-general-terms;

HealthSafe, we, us and our means HealthSafe Limited;

HealthSafe App means the mobile application we make available to Visitors pursuant to the App Terms;

HealthSafe Anonymised Data means any Customer Data that we anonymise and aggregate for our use for statistical analysis and product development purposes in accordance with this Agreement;

HealthSafe-Enabled Place means any building, property or workplace owned or managed by you (if applicable) or a Customer, where the HealthSafe Solution is used;

HealthSafe Marks means our name, trade mark registrations and applications and other marks and logos (if any) that we authorise you to use in writing from time to time, including any marks set out in an Order Form;

HealthSafe Products means the products that we agree to licence to you or the Customer as set out in an Order Form (being either SecurePass and/or dynamicRMS);

HealthSafe-Provided Device means any device which we provide to you and/or a Customer pursuant to this Agreement (as more specifically described in an Order Form);

HealthSafe-Provided Device Charges means the charges for the HealthSafe-Provided Devices purchased by you under this Agreement as set out in an Order Form;

HealthSafe Solution means the health and safety management solution (or any part of it, as the context requires) we make available to you and/or Customers under this Agreement, comprising: (a) the HealthSafe-Provided Devices (if any), (b) the HealthSafe Products, (c) the HealthSafe App, (d) the Documentation, and (e) the software, hardware, systems and technology owned by or licensed to us that enable us to provide the HealthSafe Solution, but not including any Third Party Applications;

HealthSafe Website means www.healthsafe.co, or any other URL address for our website that we notify you of from time to time;

Integrator means any third party approved by us in writing (including in an Order Form) that (i) purchases access to the HealthSafe Solution from you for the purposes of onward promotion, sale or distribution, and/or (ii) sells or distributes the HealthSafe Solution to any End Customer;  

Intellectual Property Rights means any patent, trade mark, service mark, copyright, moral right, right in a design, right in databases or other sui generis right, know-how and any other intellectual property rights, whether registered, in the course of being registered or unregistered and any analogous rights worldwide;

Losses means all liabilities, fines, costs, expenses and other charges (including legal costs on a solicitor and client basis) and any related taxes or interest;

Order Form means a document (including online forms) agreed between the parties specifying the commercial and/or technical terms applying to the provision of the HealthSafe Solution;

Performance Targets means the performance targets set out in an Order Form;

Term has the meaning set out in clause 11.1;

Territory means the territory that you may promote and offer the HealthSafe Solution for distribution in, as specified in an Order Form;

Third Party Application means a software application owned or developed by a third party that is incorporated into or interoperates with the HealthSafe Solution; and

Visitor means a natural person who visits or works (including employees or contractors) in a HealthSafe-Enabled Place (whether or not that person has downloaded or uses the HealthSafe App).

1.2    In this Agreement, unless the context requires otherwise:(a)   words importing the singular or plural number include the plural and singular number respectively;(b)   headings are inserted for the sake of convenience of reference only and do not affect the interpretation of this Agreement;(c)   a reference to a “party” or “parties” means the parties to this Agreement;(d)   a person includes any individual, corporation, unincorporated association, government department or municipal authority; (e)   the words “includes” or “including” do not imply any limitation; and(f)    a reference to “written” or “in writing” includes by email.1.3    These General Terms may be varied by us at any time, effective upon us publishing varied terms at the website link where these General Terms are located or as otherwise notified to you in writing (including by email). If we make a change to these General Terms which has a material adverse effect on your use of, or ability to distribute, the HealthSafe Solution, then you may, on no less than 30 days’ notice to us, terminate this Agreement.  If you terminate this Agreement because of a change to the General Terms in accordance with this clause

1.3, then we will refund the any prepaid Access Charges for any part of the HealthSafe Solution that has not been provided at the date of termination.

1.4    The parties may agree one or more Order Forms in respect of the HealthSafe Solution in accordance with clause 2. When the parties agree an Order Form, it forms an Agreement between the parties consisting of the terms of the Order Form and these General Terms. The Agreement (including all Order Forms) constitutes one single contract between the parties, and the effect of the parties entering into a further Order Form will be to amend this Agreement by the addition of that Order Form.

1.5    If there is a conflict between any terms of this Agreement, the following order of priority will apply to resolve the conflict (unless the Agreement explicitly says otherwise): (a)   first, the then-current General Terms;(b)   second, any Order Form (with the latest in time prevailing if there is a conflict between any Order Forms, and provided that if an Order Form expressly varies or overrides any specified provision of the General Terms, that variation will apply in accordance with its terms and will not be considered a conflict);(c)   third, any other terms of, or incorporated by reference into, this Agreement as explicitly agreed by us in writing.

2.     Appointment

2.1   Appointment. Subject to the terms of this Agreement and you satisfying the Performance Requirements at all times, we grant to you, and you accept, a non-exclusive, revocable and non-transferable right during the Term to conduct the Distribution Business.

2.2  Orders. Prior to you or a Customer getting access to the HealthSafe Solution, you must place an order with us by completing an Order Form. An Order Form is not agreed unless signed (including by electronic signature) by both parties.

2.3  Your obligations. You agree that you will not:

(a)   use, promote, sell or distribute the HealthSafe Solution in a manner not authorised under this Agreement;
(b)   promote, sell, distribute or manufacture any goods, services or software that compete with the HealthSafe Solution;
(c)   promote, sell or distribute the HealthSafe Solution to any person or entity outside of the Territory, or to any person that you know or ought to know intends to promote, sell or distribute the HealthSafe Solution outside the Territory;
(d)   sell or distribute the HealthSafe Solution to any person that you know or ought to know intends to promote, resell or redistribute the HealthSafe Solution, other than an Integrator we have approved;
(e)   purchase the HealthSafe Solution (including HealthSafe-Provided Devices) from anyone except us;
(f)    modify or remove the branding (including any HealthSafe Marks) on the HealthSafe Solution without our prior written consent;
(g)   represent yourself as our agent for any purpose, or pledge our credit or give any condition or warranty or make any representation on our behalf or commit us to any contracts;
(h)   without our prior written consent, make any representations, warranties, guarantees or other commitments with respect to the HealthSafe Solution which are inconsistent with those contained in this Agreement, the EULA or in any promotional material supplied by us; or
(i)    incur any liability on our behalf.

2.4  Performance Targets. You must meet or exceed the Performance Targets as a condition of maintaining your rights under this Agreement.  If you do not achieve the Performance Targets, we may at our discretion do any one or more of the following:

(a)   terminate this Agreement with immediate effect;
(b)   reduce the Territory;
(c)   increase the Access Charges and/or HealthSafe Device Charges.

2.5  Non-exclusive. Nothing in this Agreement will prevent us from:
(a)   promoting, marketing, selling, distributing or otherwise providing the HealthSafe Solution to any person; or
(b)   granting rights to any third party in relation to the HealthSafe Solution, anywhere in the world.

2.6   Suspension. We may suspend or restrict your and/or any Customer’s access to the HealthSafe Solution:
(a)   to the extent reasonably necessary for us to upgrade, update or maintain the HealthSafe Solution;
(b)   if use of the HealthSafe Solution by you or any Customer:
(i)      presents a material security risk to us or other HealthSafe Solution users or will interfere materially with the proper operation of the HealthSafe Solution;
(ii)     is subject to an order from a court or governmental body stating that such use must stop; or
(iii)    violates any applicable laws or regulations or the rights (including Intellectual Property Rights) of any party.

2.7   Changes to the HealthSafe Solution. We may change or discontinue the HealthSafe Solution and no such change or discontinuance will be a breach of this Agreement or be deemed to be a termination of this Agreement, provided that if the performance of the HealthSafe Solution is materially degraded by such change or discontinuance, you may terminate this Agreement on no less than 30 days’ written notice to us, and clause 11.4 will apply.

3.     General Obligations of the Parties

3.1    Your general obligations. You will:
(a)   use best efforts to conduct the Distribution Business and expand sales of the HealthSafe Solution in the Territory;
(b)   maintain adequate and competent sales staff who are well-trained in the use, functions and characteristics of the HealthSafe Solution, and ensure relevant staff members complete any training we require;
(c)   comply with all applicable laws in performing your obligations and exercising your rights under this Agreement, including in relation to the sale and marketing of the HealthSafe Solution;
(d)   have and maintain insurance as required to cover your obligations and potential liabilities under this Agreement, and in accordance with any specific requirements set out in an Order Form;
(e)   keep full and proper accounts and records clearly showing all enquiries, quotations, transactions and proceedings relating to the HealthSafe Solution and allow us, on reasonable notice, to access and review such records;
(f)    provide such other information as we reasonably require regarding the promotion, sale and distribution of the HealthSafe Solution, including as necessary to enable us to meet our obligations under this Agreement, enable us to manage and enforce the terms of the EULA against End Customers, and to confirm that you have met your obligations;
(g)   provide the Distributor Support Services to Customers in a competent, timely and responsive manner;
(h)   promptly notify us if you become aware of any fault or customer complaint in relation to the HealthSafe Solution, and assist us in the diagnosis and correction of the fault and/or resolution of the complaint; and
(i)    comply, and procure that any Customers comply, with our reasonable instructions in respect of the use of and access to the HealthSafe

Solution.3.2   Our general obligations. We will:
(a)   provide such information and support as you reasonably request to enable you to properly and efficiently discharge your duties under this Agreement; and
(b)   approve or reject any promotional material you submit in relation to the HealthSafe Solution in accordance with clause 4.2(a) within 14 Business Days of receipt.

4.      Promotion, Reporting and Relationship Matters

4.1    Materials. We may provide you with a current set of sales and promotional materials for the HealthSafe Solution, by electronic or such other means as we determine.

4.2   Your promotion obligations. You will:
(a)  advertise and promote the HealthSafe Solution, provided that any:
(i)  use of the HealthSafe Marks; or
(ii) references to the HealthSafe Solution, in promotional materials or other public statements will be subject to our prior written approval;
(b)   observe all directions and instructions that we give to you in relation to the promotion and advertising of the HealthSafe Solution;
(c)   not send unsolicited electronic messages, or otherwise engage in any form of mass electronic communications prohibited by law in connection with activities contemplated under this Agreement;
(d)   conduct your business in a manner that reflects favourably at all times on us and our good name, goodwill and reputation and not enter into any contract, make any statement or engage in any practice detrimental to our interests or reputation; and
(e)   not engage in any deceptive, misleading or unethical practices, or any practices that are, or might be, detrimental to the public, and will not make or publish, or co-operate in the making or publication of, any false, misleading or deceptive advertising material or other representations with regard to us or the HealthSafe Solution.

4.3   Relationship. The parties may appoint relationship managers and will notify each other of the name and contact details of those managers. We will meet regularly (at least once per quarter) at a mutually agreed time to:
(a)   discuss general objectives and the market in the Territory; and
(b)   monitor your progress in promoting and distributing the HealthSafe

Solution.4.4   Reporting. You must provide us with a written report by the end of each quarter during the Term. The report must include:
(a)   a list of the active Customers (including Customer organisation details, the details of the HealthSafe Solution in use and contract dates);
(b)   a summary of all current sales leads, comprising a list of the leads (including the business names, likely deal value and HealthSafe Products expected to be sold);
(c)   a summary of your progress against the Performance Targets; and
(d)   any other information we reasonably request.

4.5   Training. Upon signing this Agreement, we will organise one or more training sessions (at mutually agreed times and locations) for us to train your staff on the HealthSafe Solution.

5.      Provision of HealthSafe Solution to Customers

5.1    Distributor Terms. Subject to clauses 5.2, 5.3 and 5.4, you may apply any terms and conditions to your provision of the HealthSafe Solution to your End Customers, as between you and those End Customers (Distributor Terms).

5.2   Your Customer-related obligations. You will:
(a)   ensure that End Customers are aware of and accept the terms of the EULA before using the HealthSafe Solution;
(b)  notify all Customers that you are responsible for the provision of the HealthSafe Solution and that we have no liability to Customers (whether direct or indirect) arising out of or in connection with their use of the HealthSafe Solution other than as set out in the EULA;
(c)   ensure any Distributor Terms are not inconsistent with, nor would put you, us or a Customer in breach of, this Agreement or the EULA; and
(d)   provide or procure for us the right to:
(i)    store, process and use Customer Data (including personal information, property details and billing information) for the purpose of:
(A)   performing our obligations under this Agreement and the EULA;
(B)   providing, running, managing, supporting, enhancing or developing the HealthSafe Solution, and our other products and services;
(C)   complying with our legal obligations; and
(D)   performing data analysis, machine learning, and/or cross-entity analysis and analytics (including providing insights and information to third parties), all on an aggregated and/or anonymous basis to create the HealthSafe Anonymised Data. The HealthSafe Anonymised Data (and any Intellectual Property Rights in respect of the HealthSafe Anonymised Data) are, and will remain at all times, our property. Except as expressly provided in this Agreement, you or a Customer are not granted any Intellectual Property Rights, or any other rights or licences, in respect of the HealthSafe Anonymised Data,provided that we comply with our confidentiality obligations under clause 10;
(ii)   store, process and use Customers’ and Visitors’ data to:
(A)   contact them directly; and
(B)   enhance or develop the HealthSafe Solution and our other products and services;provided we comply with the terms of this Agreement and the EULA and obtain any necessary rights from the applicable Customer or Visitor;
(iii)  allow any Third Party Application and its provider to access Customer Data (including personal information, property location details and billing information) as required for the interoperation or integration of that Third Party Application with the HealthSafe Solution; and
(e)   provide the HealthSafe Solution to Customers in accordance with any recommended retail price list set out in an Order Form. We will notify you of any changes to the recommended retail price list on not less than 30 days’ written notice.

5.3   Integrators. If you provide the HealthSafe Solution to an Integrator:
(a)  you must have an agreement in place with the Integrator that is consistent with this Agreement;
(b)  if the Integrator does or omits to do anything that would be a breach of this Agreement if done or omitted by you (Integrator Breach), you are liable to us for, and indemnify us from and against, any Losses we suffer or incur arising out of or in connection with such Integrator Breach;
(c)   we may require you to terminate any agreement with the Integrator (and/or cease providing the HealthSafe Solution to the Integrator) if we reasonably consider the Integrator has committed an Integrator Breach or has otherwise acted in a manner that is detrimental to our legitimate business interests.

5.4   Your responsibility. For the avoidance of doubt, you are fully responsible for, and you will not be relieved from any of your obligations under this Agreement (including in relation to payment of our invoices) due to, any act or omission of your Customers.

5.5   Customer handover. If a Customer ceases to conduct business with you but wishes to continue using the HealthSafe Solution, you will provide us with a prompt and detailed handover of the Customer to enable a direct relationship between us and the Customer.

6.      HealthSafe-Provided Devices

6.1    HealthSafe-Provided Devices. If an Order Form sets out that we will sell HealthSafe-Provided Devices to you, then this clause 6 will apply in respect of those HealthSafe-Provided Devices. Throughout the Term, you may order additional HealthSafe-Provided Devices from us for distribution using an Order Form.

6.2   Embedded Software. You acknowledge and agree that title to, and any Intellectual Property Rights in, any software embedded in, or used in conjunction with, the HealthSafe-Provided Devices will not transfer to you, and your (and your Customers’) right to use any such software is subject to the terms of this Agreement and the EULA (as applicable).

6.3   Sold “as seen”. The HealthSafe-Provided Devices are sold “as seen”. We make no representations and give no warranties as to the quality, condition, state or description of the HealthSafe-Provided Devices, or their fitness or suitability for any purpose, other than those expressly set out in this Agreement. All implied statutory or common law terms, conditions and warranties as to the HealthSafe-Provided Devices are excluded to the fullest extent permitted by law.

6.4   Delivery. Delivery will be completed when the HealthSafe-Provided Devices are unloaded at the relevant location specified in an Order Form or otherwise agreed by us.

6.5   Risk. The risk of damage to or loss of the HealthSafe-Provided Devices will pass to you on delivery.

6.6   Title. Title to the HealthSafe-Provided Devices will pass to you on payment in full of the relevant HealthSafe-Provided Device Charges.

6.7   Onward Sale. If you sell the HealthSafe-Provided Devices to a Customer (or any other third party) then the price that you charge for the HealthSafe-Provided Device must be reasonable. If you sell the HealthSafe-Provided Device for a price more than what you paid to us, then any increase must be reasonably proportionate to the costs you have incurred in on-selling the device.

6.8   Obligations before title passes. Until title to the HealthSafe-Provided Devices has passed to you, you must:
(a)   store the HealthSafe-Provided Devices separately from all other goods you hold so they remain readily identifiable as our property;
(b)   not remove, deface or obscure any identifying mark on or relating to the HealthSafe-Provided Devices; and
(c)   maintain the HealthSafe-Provided Devices in a satisfactory condition and keep them insured against all risks for their full price from the date of delivery.

6.9   No liability. We are not liable for any damage or Losses caused by the installation of any HealthSafe-Provided Devices, other than to the extent such damage or Losses are caused by our negligence or wilful misconduct.

7.       Payment

7.1     Payment terms. We will invoice you, and you will pay, the Charges in accordance with this clause 7 and the Order Form. Unless specified otherwisein an Order Form, all amounts payable under this Agreement will be invoiced by us in New Zealand dollars.

7.2    Failure to make payment. If you fail to pay any invoice when due, then without affecting any of our other rights and remedies we may:
(a)  without liability to you, disable your and your End Customers’ access to the HealthSafe Solution, and will be under no obligation to provide the HealthSafe Solution while the invoice(s) concerned remain unpaid; and
(b)  charge you interest that will accrue on any due amounts at an annual rate equal to 4% over the then current base overdraft rate of our bankers calculated from the due date until the date the amount is paid in full.

7.3    GST. All amounts referred to in this Agreement are exclusive of GST or other value added tax (if any).

7.4    Taxes. You are responsible for paying all taxes, duties or customs levies associated with your purchases under this Agreement (other than taxes assessed against us based on our income). If you are required by law to deduct or withhold taxes or charges from the amounts due to us under this Agreement, you will ensure that the amount due to us is increased so that the payment actually made to us equals the amount due to us as if no such taxes or charges had been imposed.

7.5    Estimates. Where any amount is indicated as estimated, you agree that the actual amount to be invoiced will be calculated based on our standard rates for the actual time taken and materials used to perform the work required. Travel, accommodation and other disbursements will be invoiced at cost.

7.6    Changes to Access Charges. We may increase the Access Charges no more than once each year of the Fixed Term by a percentage amount that is equal to the change in the New Zealand Consumer Price Index (CPI) for the immediately preceding 12-month period. We may change the Access Charges at any time following the end of the Fixed Term by giving you at least 30 days’ prior written notice. 

8.      Warranties and liability8.1    Mutual warranty. Each party warrants that it has the power and authority to enter into, and perform its obligations under, this Agreement.8.2   Our warranties. We warrant that the HealthSafe Solution (excluding the HealthSafe-Provided Devices):
(a)   will function substantially as described in the Documentation; and
(b)   does not infringe the copyright of any third party.

8.3   Remedies. If the HealthSafe Solution does not function substantially in accordance with the Documentation, we will, at our option, either:
(a)   modify the HealthSafe Solution to conform to the Documentation; or
(b)   provide a workaround solution.If neither of the options in paragraphs (a) or (b) are commercially feasible, we may terminate this Agreement by giving you written notice, in which case we will refund to you any Access Charges pre-paid to us for unused access to the HealthSafe Solution. Such correction, substitution or refund constitutes your sole and exclusive remedy for any breach of the warranty in clause 8.2(a).

8.4   Warranty exclusions. We will not be liable for a breach of either warranty in clause 8.2 to the extent any non-conformance or infringement is caused by:
(a)   Customer Data that you, an End Customer or any third party has inputted to the HealthSafe Solution;
(b)   any instructions you or a Customer have provided to us;
(c)   use of the HealthSafe Solution contrary to the Documentation or any of our instructions,
(d)   loss of or damage to the HealthSafe Devices caused by you, any Customer or any third party; or
(e)   modification or alteration of the HealthSafe Solution, or integration with Third Party Applications, by any party other than us or our authorised contractors or agents.

8.5   Other than as expressly set out in this Agreement, we do not warrant:
(a)   that your or the Customers’ use of the HealthSafe Solution will be uninterrupted or error-free;
(b)   that the HealthSafe Solution or the information obtained through the HealthSafe Solution will meet your or any Customer’s requirements or will always be available, either in its current form or at all;
(c)   that we will support, maintain or continue to offer the HealthSafe Solution; or
(d)   the accuracy, correctness, reliability or completeness of any information obtained through the HealthSafe Solution.

8.6   Further matters. You acknowledge and agree that:
(a)   both parties are in trade, the HealthSafe Solution and any services provided under this Agreement are supplied and acquired in trade, and accordingly the provisions of the Consumer Guarantees Act 1993 and sections 9, 12A, 13, and 14(1) of the Fair Trading Act 1986 do not apply to this Agreement;
(b)  we may rely on the provision of services by third parties (including data centre, electricity, telecommunications network and outsourcing providers) to provide the HealthSafe Solution (Third Party Providers) and the HealthSafe Solution may be subject to limitations, delays and other problems inherent in the use of services provided by Third Party Providers;
(c)   we will not be responsible for any delays, delivery failures, or any Losses arising out of or in connection with any services provided by Third Party Providers; and
(d)   the HealthSafe Solution is not a guarantee or assurance of the personal safety of any Visitor to, or that there will be no damage to or loss of any tangible property in, any HealthSafe-Enabled Place. Ensuring the safety of any Visitor to the HealthSafe-Enabled Place is your or the End Customer’s responsibility. We do not assume any of your or End Customers’ legal health and safety responsibilities as a consequence of this Agreement or the provision of the HealthSafe

Solution.8.7   Except as expressly set out in this Agreement, the HealthSafe Solution is provided on an “as is” basis and all representations, conditions or warranties (whether express or implied, statutory or otherwise, and including warranties of merchantability and fitness for a particular purpose) in respect of the HealthSafe Solution are expressly excluded to the extent permitted by law.

8.8   Indemnity. You indemnify us from and against any Losses we suffer or incur arising out of or in connection with:
(a)   any claim that you or any Customer or Visitor have infringed the rights (including the Intellectual Property Rights) of any third party; or
(b)   your, or any Customer’s or Visitor’s:
(i)    use of the HealthSafe Solution;
(ii)   breach of the EULA; or
(iii)  wilful misconduct or unlawful act or omission,except to the extent any such Losses are a direct result of our negligence, wilful misconduct or breach of this Agreement.

8.9   Liability exclusions and cap. Except for your liability under clause 8.8 above, a breach by either party of its confidentiality obligations or an infringement by either party of the other party’s Intellectual Property Rights:
(a)   neither party will be liable to the other party for any:
(i)    loss of profit, revenue, savings, business, data and/or goodwill; or
(ii)   indirect, consequential or special Losses,suffered or incurred by the other party as a result of anything done by the first party under this Agreement; and
(b)   our total liability arising out of all claims for Losses under this Agreement will not exceed in aggregate an amount equal to the Access Charges actually paid by you in the six months immediately prior to the first event giving rise to our liability for any Losses under this Agreement.

9.     Intellectual Property Rights

9.1    HealthSafe Solution. You acknowledge that all Intellectual Property Rights in the HealthSafe Solution, the HealthSafe Marks and HealthSafe Website belong to us or our licensors and you will not dispute such ownership.

9.2   Feedback. Wherever reasonably practicable, you will advise us of any suggestions or feedback for enhancing the HealthSafe Solution of which you become aware (Feedback). 

9.3   Created IP. You acknowledge that the Intellectual Property Rights in any Feedback and any adaptations of, modifications or enhancements to, the HealthSafe Solution, Documentation, HealthSafe Marks or HealthSafe Website (whether recommended or created by you or any other person) (Created IP) will belong to us or our licensors and you will not dispute such ownership.  To the extent the Intellectual Property Rights in the Created IP do not vest in us automatically, you assign to us (or at our request, our licensors) without reservation the Intellectual Property Rights in any Created IP and will cooperate with us and sign all documents and do everything necessary to enable us to fully protect, realise, use and enforce the Created IP.

9.4   Right to use HealthSafe Marks. Subject to clause 4, we grant you the non-exclusive right to use our HealthSafe Marks solely in relation to the promotion of the HealthSafe Solution to potential Customers in the Territory for the Term.

9.5   Notification. You will promptly notify us in writing if you become aware of:
(a)   any infringement or suspected infringement of the HealthSafe Marks or any other Intellectual Property Rights relating to the HealthSafe Solution within the Territory; or
(b)   any claim that any element of the HealthSafe Solution or the manufacture, use, sale or other disposal of any element of the HealthSafe Solution within the Territory infringes the rights of any third party.

9.6   Conduct of IP matters. In respect of any matter that falls within clause 9.5:
(a)   we will, in our absolute discretion, decide what action to take in respect of the matter (if any);
(b)   we will conduct and have sole control over any consequent action that we deem necessary; and
(c)   you will provide all assistance that we reasonably request in relation to the matter. Such assistance will be at our cost unless the matter results from your act or omission, in which case it will be at your cost.

10.    Confidentiality
10.1   Confidentiality obligations. Each party (the Recipient) must:
(a)   keep strictly confidential any Confidential Information of the other party (the Discloser); and(b)   only use the Discloser’s Confidential Information to exercise its rights and perform its obligations under this Agreement.10.2  Exclusions. The obligations of confidentiality in clause 10.1 will not apply to information that:
(a)   the Recipient can clearly show was independently developed by the Recipient, or available to the Recipient from a third party with the right to disclose it;
(b)   is in the public domain through no fault of the Recipient or any other person to whom the Recipient discloses the information;
(c)   the Recipient is obliged by law, a regulator or the rules of any stock exchange to disclose, provided that it has first advised the Discloser of this obligation, has allowed the Discloser reasonable time to avoid the disclosure having to be made, and has given the Discloser any assistance (at the Discloser’s cost) the Discloser reasonably requests in doing this;
(d)   the Recipient discloses to its accounting, legal or technical services professionals for the purposes of them providing professional services to the Recipient, provided they have a need to know the information and are subject to confidentiality obligations at least equivalent to those in this clause 10.

10.3  Obligations on termination. The Recipient will on demand and, in any event, on termination of this Agreement, deliver to the Discloser (or, at the Discloser’s request, delete) all Confidential Information supplied by or obtained from the Discloser except to the extent the Recipient is required by law to retain the Confidential Information.

10.4  Publicity. Notwithstanding any other provisions of this clause 10, we can mention or refer to your name, and identify you as a HealthSafe Distributor, on our Website and in any publicity or marketing collateral (including any case studies) and you grant us a continuing right to use your name and trade marks for such purposes for the Term of this Agreement.

10.5  Survival. This clause 10 will survive termination or expiry of this Agreement.

11.      Term and Termination

11.1    Term. Unless an Order Form (and/or this Agreement) is terminated earlier in accordance with its terms:
(a)   each Order Form starts on the date of last signature and continues for the Fixed Term; and
(b)   following the end of any Fixed Term (or if there is no Fixed Term), each Order Form will automatically continue for successive terms of 12 months (each subsequent period, a Renewal Term) unless terminated by either party giving the other party at least 30 days’ prior written notice that the Order Form will terminate on the expiry of the then-current term (the Fixed Term together with any Renewal Term is the “Term” of this Agreement),provided that the Agreement will continue in force to the extent necessary to give effect to any existing Order Form(s).

11.2   No fault termination. We may terminate this Agreement for any reason on at least 60 days’ prior written notice

.11.3   Other termination rights. Either party may terminate this Agreement immediately at any time by giving written notice to the other party (the Defaulting Party), if the Defaulting Party:
(a)   fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
(b)   materially breaches this Agreement and, if the breach is capable of remedy, fails to remedy the breach within 30 days after receiving notice requiring the breach to be remedied; or
(c)   goes into liquidation or has a receiver or statutory manager appointed in respect of any of its assets, becomes insolvent or makes any arrangement with its creditors.

11.4   Consequences of termination or expiry. On termination or expiry of this Agreement:
(a)   to ensure Customers continue to receive the Healthsafe Solution for the duration of their licence period, all active Customer orders will transfer to direct-to-Customer management by us under our standard terms and conditions (as published on the HealthSafe Website, as varied from time to time) and you will do all things and execute any documents required to give effect to this clause;
(b)   you must promptly pay any Charges due on a pro-rata basis for each day up to and including the date of termination of this Agreement;
(c)   at our request, you will promptly deliver to us a complete list of contact details for all Customers and prospective Customers which, to avoid doubt, we may use to conduct the Distribution Business;
(d)   you will, in good faith, hand over to us all active Customers, including sharing all the information reasonably needed for us to continue to provide those Customers with the HealthSafe Solution;
(e)   each party will immediately return any property belonging to the other party except to the extent that a party is required by law to retain such property;
(f)    unless expressly provided otherwise, all rights and licences granted by either party to the other under this Agreement will terminate (including your rights to use the HealthSafe Marks);
(g)   we will not be required to make any goodwill related payments; and(h)   the accrued rights of the parties as at termination, and the continuation after termination of any provision expressly stated to survive or implicitly surviving termination (including clauses 4.2(d) and (e), 8, 9, 10 and this clause 11), will not be affected or prejudiced.

12.    Disputes

12.1   Notice of Dispute. If a dispute occurs relating to this Agreement (Dispute), the party claiming the Dispute has arisen must give written notice to the other party specifying the nature of the Dispute.

12.2  Informal resolution. On receipt of that notice, the parties will use all reasonable efforts to resolve the Dispute by discussion, consultation, negotiation or other informal means.

12.3  Court proceedings. If the Dispute is not resolved within 15 Business Days of the notice being given pursuant to clause 12.1 (or within any further period agreed in writing by the parties), either party may commence court proceedings relating to the Dispute.

12.4  Urgent interlocutory relief. Nothing in this clause 12 restricts or prevents a party from applying for urgent interlocutory relief at any time.13.    Unavoidable Events

13.1   No liability. Neither party will have any liability under this Agreement for any delay or failure to perform its obligations if the delay or failure is caused by any event beyond that party’s reasonable control and the delay or failure could not have been prevented by exercising the skill, diligence and care expected of a skilled and experienced person in the same or similar circumstances (Unavoidable Event).

13.2  Notice and mitigation. If an Unavoidable Event happens, the affected party must promptly give written notice of the fact and circumstances of the Unavoidable Event to the other party and use its best efforts to mitigate any effects.

13.3  Right to terminate. If an Unavoidable Event continues for a period of 30 days or more, then the unaffected party will be entitled to terminate this Agreement immediately by giving the other party notice in writing. 

14.    General

14.1   Entire Agreement. This Agreement constitutes the entire agreement of the parties about its subject matter and supersedes any previous understandings or agreements regarding that subject matter. This Agreement will apply to the exclusion of any other terms and conditions, including those contained or referred to in any communication you send to us.

14.2  Relationship. This Agreement will not be deemed to create a partnership, joint venture or agency relationship of any kind between the parties.

14.3  Third party rights. No person other than the parties has any right to a benefit under, or to enforce, the Agreement.

14.4  Severability. If any provision (or part provision) of this Agreement is or becomes invalid, void, illegal or unenforceable for any reason, it will be deemed to be severed from this Agreement without affecting the validity or enforceability of the remainder of this Agreement.

14.5  Waiver. A provision or a right under this Agreement may not be waived except in writing signed by the party granting the waiver.

14.6  Exercise of rights. A party may exercise a right, power or remedy under this Agreement at its discretion, and separately or concurrently with another right, power or remedy.  A single or partial exercise of a right, power or remedy by a party under this Agreement does not prevent a further exercise of that (or any other) right, power or remedy.

14.7  Variations. Except as set out in clauses 1.3 and 1.4, any variation to this Agreement must be agreed in writing between the parties.

14.8  No assignment. You will not assign, transfer or otherwise deal with this Agreement or any of your rights or obligations under this Agreement, whether in whole or in part, without our prior written consent.

14.9  Notices. Notices and other communications under this Agreement are to be given in writing by email, personal delivery or by post and must be:(a)   sent to the correct address designated in the Order Form for that purpose (as may be updated by each party from time to time in writing); and(b)   marked for the attention of the designated person or office holder (if any).

14.10 Receipt of notices. A notice or communication in relation to this Agreement will be deemed to be received:(a)   in the case of a letter, on the tenth Business Day after posting; (b)   in the case of email, on the Business Day on which the email is successfully delivered (but if the email is successfully delivered after 5pm on a Business Day then it will be deemed to be received on the following Business Day); and (c)   in the case of personal delivery, when delivered.

14.11  Governing law and jurisdiction. This Agreement (and any non-contractual obligations arising out of it) will be governed by and construed in accordance with the laws of New Zealand. The New Zealand courts will have exclusive jurisdiction.

14.12 Vienna Convention. The United Nations Convention on Contracts for the International Sale of Goods 1980 does not apply to the Agreement.

14.13 Counterparts. This Agreement may be signed in counterparts, each of which constitutes an original and all of which constitute the same agreement. Each party may enter the Agreement by signing and sending a counterpart copy to the other party (including an electronic copy sent by email).

SCHEDULE – End User Licence Agreement for customers of [Insert Distributor name]Welcome to HealthSafe, a software-as-a-service solution to assist organisations in managing their health and safety obligations for those who work at and interact with the organisation, for example visitors, contractors and employees. This End User Licence Agreement (EULA) is a legal agreement between you (as the customer) and us (HealthSafe NZ Limited) that sets out our, and your, rights and obligations in relation to the HealthSafe Solution. You can contact us at support@healthsafe.co for more information about HealthSafe.Please read this EULA carefully before using the HealthSafe Solution. By using the HealthSafe Solution you agree to follow and be bound by this EULA. If you do not agree to the terms in this EULA, you must not use the HealthSafe Solution.

1.       Definitions and Interpretation

1.1.     In this EULA, unless the context requires otherwise:

App Terms means the terms of use for the HealthSafe App as accepted by each Visitor on downloading the HealthSafe App;

Business Day means a day other than a Saturday, Sunday or public holiday in Auckland, New Zealand;

Commencement Date means the date on which you first use the HealthSafe Solution;

Customer, you or your means the person receiving the HealthSafe Solution;

Customer Data means any data created, collected or obtained: (a) via the HealthSafe Solution; and/or (b) from you, Your Users or Visitors, in each case from or in relation to a HealthSafe-Enabled Place, but excluding HealthSafe Anonymised Data;

Data Protection Legislation means all applicable laws and regulations relating to data protection and privacy in any jurisdiction in which our or your obligations are performed or data is being Processed in connection with this EULA, including the Privacy Act 2020 (NZ);

Documentation means the documentation (if any) made available to you by us, which sets out a description of, and user instructions for, the HealthSafe Solution;

HealthSafe, we, us and our mean HealthSafe NZ Limited;

HealthSafe Anonymised Data means any Customer Data that we anonymise and aggregate for our use for statistical analysis and product development purposes in accordance with this EULA;

HealthSafe App means the mobile application we make available to Visitors pursuant to the App Terms;

HealthSafe-Enabled Place means any building, property or workplace owned or managed by you, where you use the HealthSafe Solution;

HealthSafe Marks means our name, trade mark registrations and applications and other marks and logos (if any) that we authorise you to use in writing from time to time;

HealthSafe Solution means the health and safety management solution (or any part of it, as the context requires) we provide to you under this EULA and/or that you access via our third party distributor, comprising,
(a) the particular HealthSafe Products that you have purchased a subscription for,
(b) the HealthSafe App,
(c) the Documentation, and
(d) the software, hardware, systems and technology owned by or licensed to us that enable us to provide the HealthSafe Solution, but not including any Third Party Applications;

HealthSafe Website means our website at www.healthsafe.co, or any other URL address for our website that we notify you of from time to time;

Intellectual Property Rights means any patent, trade mark, service mark, copyright, moral right, right in a design, right in databases or other sui generis right, know-how and any other intellectual property rights, whether registered, in the course of being registered or unregistered and any analogous rights worldwide;

Losses mean all liabilities, fines, costs, expenses and other charges (including legal costs on a solicitor and client basis) and any related taxes or interest;

Personal Information means any information relating to an identified or identifiable natural person. An identifiable natural person is one who can be identified, directly or indirectly, including by reference to an identifier such as a name, identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;

Privacy Notice means our privacy notice located at https://healthsafe.co/privacy-policy or any other URL address that we notify you of from time to time;

Process means to collect, store, use and/or disclose, or otherwise perform any operation on, any data (and Processed and Processing have corresponding meanings);

Third Party Application means a software application owned or developed by a third party that is incorporated into or interoperates with the HealthSafe Solution;

Virus means any thing or device (including any software, code, file or program) which may prevent, impair or otherwise adversely affect
(a) the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; (b) access to or the operation of any program or data, including the reliability of any program or data; or
(c) the user experience, in each case including worms, trojan horses, viruses and other similar things or devices;

Visitor means a natural person who visits or works (including employee or contractor) in a HealthSafe-Enabled Place (whether or not that person has downloaded or uses the HealthSafe App); and

Your User means any employee, contractor, officer or agent of yours who you authorise to access and use the HealthSafe Solution in accordance with this EULA.1.2.    In this EULA, unless the context requires otherwise:
(a)   a reference to a statute includes all regulations under and amendments to that statute, and any statute passed in substitution for that statute or incorporating any of its terms;
(b)   the singular includes the plural and vice versa;
(c)   references to a “party” or “parties” are to the parties to this EULA;
(d)   “person” includes a natural person and any entity whether or not incorporated; and(e)   the words “includes” or “including” do not imply any limitation.

2.      Access to HealthSafe Solution

Right to access 2.1.   We grant you, with effect from the date you receive access to the HealthSafe Solution, a non-exclusive, non-transferable right to access and use the HealthSafe Solution solely for the purpose of monitoring and managing the Visitors in your HealthSafe-Enabled Places, in accordance with the terms of this EULA.Your

Users2.2.  Without limiting any of your other obligations under this EULA:
(a)   you will be responsible for determining the level of access that each of Your Users has to the HealthSafe Solution, and you acknowledge that we will not be responsible for any issue arising due to:
(i)    any act or omission of Your Users; or
(ii)   you incorrectly granting a level of access to Your Users;
(b)   you will ensure that each of Your Users complies with the terms of this EULA;
(c)   we will have no liability, whether direct or indirect, to Your Users or Visitors in connection with their use of the HealthSafe Solution;
(d)   any act or omission of Your Users or Visitors relating to the HealthSafe Solution will be treated as your act or omission and we will not be responsible for any act or omission of Your Users.

2.3.   Without limiting our other rights and remedies, we can terminate any authority you have granted to Your Users if we consider they have put you in breach of this EULA.Visitors

2.4.   You must ensure that any terms you have in place with Visitors (including terms in relation to Personal Information): (i) are consistent with; (ii) would not put you in breach of; and (iii) allow us to exercise our rights and perform our obligations under, this EULA.Upgrades

2.5.   You acknowledge that we regularly upgrade and update the HealthSafe Solution, and that the HealthSafe Solution will continually evolve. We or our third party distributor will provide you with reasonable notice of any such changes if we consider this is necessary. You are responsible for the costs of implementing any upgrades required in your technology environment to ensure the upgraded or updated HealthSafe Solution continue to operate.Your access obligations

2.6.   You will:
(a)   keep secure logins and passwords for your (and Your Users’) access and use of the HealthSafe Solution and keep them confidential; and
(b)   promptly disable any login account if you or we discover that any details have been disclosed or compromised.

2.7.   You will allow us at any time on reasonable notice to audit your use of the HealthSafe Solution to establish whether it is being used in accordance with this EULA.

2.8.  You will be solely responsible for procuring and maintaining your network connections and telecommunications links from your system to ours (and we will not be liable for any problems, conditions, delays, delivery failures or any other Losses arising from your network connections or telecommunications or caused by the internet).

2.9.  You will not access, store, distribute or transmit any Viruses in connection with the HealthSafe Solution, and we can, without liability and without limiting our other rights and remedies, disable your access to the HealthSafe Solution if you are in breach of this clause.

2.10.  You will not:
(a)   except as expressly permitted under this EULA or by any law which cannot be excluded by agreement between us:
(i)    copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute  the HealthSafe Solution; or
(ii)   reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form the HealthSafe Solution;
(b)   access the HealthSafe Solution to build a product or service which competes with the HealthSafe Solution;
(c)   use the HealthSafe Solution to provide services to third parties (other than to Your Users and Visitors in accordance with this EULA);
(d)   make the HealthSafe Solution available to any third party (other than to Your Users and Visitors in accordance with this EULA);
(e)   undermine the integrity or security of the HealthSafe Solution;
(f)    use the HealthSafe Solution in a manner likely to cause excessive load or otherwise interfere with the delivery of the HealthSafe Solution to third parties;
(g)   obtain, or assist third parties in obtaining, access to the HealthSafe Solution or other related materials, other than as provided under this clause 2; or
(h)   attempt to do any of the things specified in paragraphs (a) to (g) above.

2.11.   You will use all reasonable efforts to prevent any unauthorised access to, or use of, the HealthSafe Solution and, in the event of any such unauthorised access or use, promptly notify us.Analytics

2.12.  As part of the HealthSafe Solution we may provide you with analytics, insights or other information in relation to, or derived from, Customer Data (Analytics). You acknowledge that the results of, assumptions used in, and information generated from any Analytics are for informational purposes only, and are subject to change depending on a variety of factors, which may not have been taken into account in providing the Analytics. To the maximum extent permitted by law, we will not be liable for any loss or damage arising in connection with your reliance on and use of Analytics. You agree that you will not rely solely on the Analytics and will carry out your own research, testing and diligence to verify the accuracy, correctness, reliability and completeness of the Analytics.Integration with Third Party Applications

2.13.  The HealthSafe Solution may include functionality or features which use or integrate with Third Party Applications. To use such functionality or features, you may need to obtain access to Third Party Applications from their providers, and to grant us access to your account(s) on those Third Party Applications. We cannot guarantee the continued availability of Third Party Applications (or the functionality or features which utilise them) and we can stop providing them at any time without liability to you

.2.14.  You must(a)   comply, and ensure Your Users and Visitors comply, with the terms of use for any Third Party Applications; and(b)   ensure we are authorised to access your account(s) on Third Party Applications where required or as otherwise reasonably required by us to provide the HealthSafe Solution.

2.15.  Any use by you of Third Party Applications, and any exchange of data between you and the provider of any Third Party Application is a matter solely between you and the applicable provider and we do not have any liability for, or warrant or support, Third Party Applications or their providers.3.      Data

3.1.    Customer Data (and any Intellectual Property Rights in respect of Customer Data) are, and will remain at all times, your property, subject to any rights of individuals attaching to Customer Data under Data Protection Law. Except as expressly provided in this EULA, we are not granted any Intellectual Property Rights, or any other rights or licences, in respect of Customer Data.

3.2.   Notwithstanding clause 3.1, you grant us the right to Process Customer Data to the extent necessary for us to:
(a)   provide, run, manage and support the Services and the HealthSafe Solution in accordance with this EULA;
(b)   comply with our legal obligations; and
(c)   create the HealthSafe Anonymised Data.

3.3.   The HealthSafe Anonymised Data (and any Intellectual Property Rights in respect of the HealthSafe Anonymised Data) are, and will remain at all times, our property. Except as expressly provided in this EULA, you are not granted any Intellectual Property Rights, or any other rights or licences, in respect of the HealthSafe Anonymised Data.

3.4.   Each party:
(a)   grants to the other party all rights and licences (including any assignment or licence of any relevant Intellectual Property Rights) necessary to give effect to clauses 3.1, 3.2 and 3.3 above; and
(b)   will do anything necessary to effect any assignment or licence required under clause 3.4(a).

3.5.   Each party will comply with Data Protection Legislation and take appropriate technical, physical and organisational measures and safeguards against unauthorised or unlawful Processing of the Customer Data and Personal Information in that party’s possession or control, or their accidental loss, damage or disclosure. We will, as part of these measures, use reasonable efforts to back-up any Customer Data in our possession or control. You acknowledge that if there is any loss or damage to Customer Data in our possession or control, your sole and exclusive remedy will be for us to use reasonable efforts to restore such lost or damaged data from the latest back-up maintained by us (subject to any rights you may have under Data Protection Legislation). We will not be responsible for any loss, damage or disclosure of Customer Data caused by any third party.

3.6.   You agree that we may Process Customer Data in accordance with our Privacy Notice.

3.7.   You acknowledge and agree that we can allow any Third Party Application and its provider to access Customer Data as required for the interoperation or integration of that Third Party Application with the HealthSafe Solution. We are not responsible for any disclosure, modification or loss of Customer Data caused by any Third Party Application or its provider.

4.      Your General Obligations

4.1.    You will:
(a)   provide us with all necessary co-operation and access to any information required by us, so that we can provide the HealthSafe Solution,  and you warrant that you are authorised to provide that access and information;
(b)   comply with all applicable laws in relation to the use of the HealthSafe Solution and your activities under this EULA;
(c)   use the HealthSafe Solution only in accordance with this EULA; and
(d)  promptly notify us or our third party distributor of any malfunction of the HealthSafe Solution and provide us with the opportunity to correct the malfunction. You acknowledge and agree that we may suspend provision of the HealthSafe Solution until a correction can be made.

5.      Intellectual Property Rights

5.1.    You acknowledge and agree that we or our licensors own all Intellectual Property Rights in the:
(a)   HealthSafe Solution; and
(b)   HealthSafe Marks,together with all modifications, enhancements and other developments (whether or not recommended or suggested by you).Except as expressly provided in this EULA, you are not granted any Intellectual Property Rights, or any other rights or licences, in respect of the items in (a) and (b).

5.2.  We confirm that we have all the rights in relation to the HealthSafe Solution that are necessary to grant all the rights we purport to grant under this EULA.

6.     Warranties and Liability

6.1.   Except as expressly set out in this EULA, the HealthSafe Solution is provided on an “as is” basis and all representations, conditions or warranties (whether express or implied, statutory or otherwise, and including warranties of merchantability and fitness for a particular purpose) in respect of the HealthSafe Solution are expressly excluded to the extent permitted by law. In particular, we do not warrant:
(a)   that your use of the HealthSafe Solution will be uninterrupted or error-free;
(b)   that the HealthSafe Solution or the information you obtain through the HealthSafe Solution will meet your requirements or will always be available, either in its current form or at all;
(c)   that we will support, maintain or continue to offer the HealthSafe Solution; or
(d)   the accuracy, correctness, reliability or completeness of any information obtained through your use of the HealthSafe Solution.

6.2.   You acknowledge and agree that:
(a)   we provide, and you acquire, the HealthSafe Solution “in trade” are supplied and acquired in trade, and accordingly the parties agree to contract out of the provisions of the Consumer Guarantees Act 1993 and sections 9, 12A, 13, and 14(1) of the Fair Trading Act 1986 in respect of the HealthSafe Solution;
(b)  we may rely on the provision of services by third parties (including data centre, electricity, telecommunications network and outsourcing providers) to provide the HealthSafe Solution (Third Party Providers) and the HealthSafe Solution may be subject to limitations, delays and other problems inherent in the use of services provided by Third Party Providers;
(c)   we will not be responsible for any delays, delivery failures, or any other Losses arising out of or in connection with any services provided by Third Party Providers;
(d)  the HealthSafe Solution is not a guarantee or assurance (and is not intended to be and cannot be considered or relied upon as a guarantee or assurance) of the personal safety of any Visitor to, or that there will be no damage to or loss of any tangible property in, any HealthSafe-Enabled Place. Ensuring the safety of any Visitor to the HealthSafe-Enabled Place is your responsibility. We do not assume any of your legal health and safety responsibilities as a consequence of this EULA or the provision of the HealthSafe Solution or the Services; and
(e)   you are solely responsible for ensuring the accuracy and correctness of any output or result from your use of the HealthSafe Solution.

6.3.   You indemnify us from and against any Losses we suffer or incur arising out of or in connection with your, any of Your Users’ or any Visitors’, use of the HealthSafe Solution or Services (except to the extent such Losses are a direct result of our negligence, our wilful misconduct or our breach of this EULA).6.4.   Except for your liability under clause 6.3,  or an infringement by either party of the other’s Intellectual Property Rights:
(a)   neither party will be liable to the other party for loss of profits, loss of revenue, loss of data or any indirect, consequential or special losses or damages incurred by the other party; and
(b)   our total liability under this EULA will not exceed in aggregate an amount equal to $500.6.5.   You acknowledge and agree that Your Users are not granted any rights under or permitted to make a claim in relation to, this EULA.

7.      Termination

7.1.    We can terminate this EULA or suspend your access to the HealthSafe Solution immediately at any time on notice to you if you:
(a)   are in material breach of this EULA and, where the breach is capable of remedy, fail to remedy the breach within 14 days of receiving notice from us specifying the breach and requiring it to be remedied; or
(b)   go into liquidation or have a receiver or statutory manager appointed in respect of any of your assets, become insolvent or make any arrangement with creditors.

7.2.   On termination or expiry of this EULA for any reason:
(a)   all licences we grant you under this EULA will immediately terminate and you must cease using the HealthSafe Solution;
(b)   we will delete or purge any Customer Data in our possession or control no later than 30 days following termination of this EULA. It is your responsibility to export a copy of the Customer Data in a meaningful way prior to termination using the available features in the Healthsafe Solution; and
(c)   the accrued rights of the parties as at termination will not be affected or prejudiced.

7.3.   Clauses 2.1, 2.4, 2.9, 3, 5, 6.3, 6.4, 6.5, 7.2, and all other terms which by their nature are required to survive expiry or termination, will survive expiry or termination of this EULA.

8.      General

8.1.    This EULA is the entire agreement between you and us about its subject matter and replaces any previous understandings or agreements about that subject matter.

8.2.   This EULA will not be deemed to create a partnership, joint venture or agency relationship of any kind between the parties.

8.3.  If one or more provision (or part provision) of this EULA is or becomes invalid, void, illegal or unenforceable for any reason, it will be deemed to be severed from this EULA without affecting the validity or enforceability of the remainder of this EULA.

8.4.   A provision or a right under this EULA may not be waived except in writing signed by the party granting the waiver.

8.5.   A party can exercise a right, power or remedy under this EULA at its discretion, and separately to or concurrently with another right, power or remedy. A single or partial exercise of a right, power or remedy by a party under this EULA does not prevent a further exercise of that (or any other) right, power or remedy.

8.6.   You will not assign, transfer or otherwise deal with this EULA or any of your rights or obligations under this EULA, whether in whole or in part, without our prior written consent.

8.7.   This EULA will be governed by and interpreted in accordance with the laws of New Zealand and subject to the exclusive jurisdiction of the New Zealand courts.